The landmark case of Sidumo v. Rustenburg Platinum Mines Ltd made it clear that, although an employer can prove the guilt of the accused, the seriousness and thus the relevant sanction to follow such guilty finding cannot be viewed only in context of the employer’s disciplinary code – nor can the employer’s subjectivity be the final determining factor.
The following points of consideration of a relevant sanction were set by this case:
1. The employee’s length of service
This is one of the core considerations and should be carefully assessed alongside the employee’s disciplinary record and years of service to determine whether or not the offence was isolated or habitual in nature.
2. The importance of the rule that has been breached
The employer must indicate that the rule is serious in terms of their disciplinary code and why.
3. Reason why the sanction is appropriate
The employer states that he/she was placed in a difficult situation due to the employee’s act, especially if it was repetitive in nature, as the relationship of trust between the employee and employer then becomes irretrievably broken down.
4. Could training, tutoring and guidance be effective to prevent future misconduct?
The consideration of alternatives, such as counselling, must be considered before dismissal.
5. Harm caused by the employee
The employer should testify that the trust relationship between the employer and employee was damaged irreparably and point out any damages/potential damages which should be considered.
6. Progressive discipline should be applied
This would be dependent on the seriousness/repetitive nature of the misconduct.
7. The trust relationship between the employee and the employer
The employer’s submission that the trust relationship has been damaged irreparably due to the gross/repetitive misconduct exhibited by the accused must be justified.
8. The presence of dishonesty in the employees’ conduct
If the employee’s misconduct was of a dishonest nature, then dismissal is easier to justify.
9. The admission/denial of guilt by the employee
Whether the employee behaved dishonestly or inappropriately while disputing the charges can be aggravating in nature.
10. Is the misconduct so serious that it makes a future working relationship intolerable
The Code of Good Practice of the Labour Relations Act indicates that dismissal is not appropriate for a first offence unless the misconduct is serious and makes a continued employment relationship intolerable.
11. The effect of the sanction on the employee
The employee’s age, financial obligations, dependants, future employment etc. are to be considered.
12. The consistency of application of dismissal as a sanction
The employer must testify and prove if necessary, that dismissal was applied consistently as a sanction for the same/similar misconduct in the past.
ABOUT THE AUTHOR
Dyllan Jankielsohn is currently a SEESA Labour Legal Advisor. He obtained his LLB degree from the University of the Free State. He is an admitted attorney of the High Court of South Africa and has 2 years of experience in the field of labour law.